India's Supreme Court Restores Ban On Gay Sex

A child sitting on the shoulders of an Indian gay rights activist waves a rainbow-colored flag during a protest in New Delhi following a decision Wednesday by the country's top court that a colonial-era law criminalizing homosexuality will remain in effect.

Altaf QadriAP

Originally published on December 11, 2013 1:00 pm

India's Supreme Court on Wednesday reversed a landmark lower court ruling that decriminalized homosexual acts, in a decision that is being called a major setback to gay rights in the country.

At issue was an 1861 British colonial-era law that forbids "intercourse against the order of nature." Prosecutions under Section 377 of the Indian Penal Code are rare, but are often used by police to harass gays and lesbians.

The Delhi High Court in 2009 ruled that the law violated the fundamental rights guaranteed by India's Constitution. But that decision was challenged by Hindu, Muslim and Christian organizations, which welcomed the decision.

On Wednesday, the Supreme Court ruled that only Parliament can change the law. The decision was criticized by gay rights groups and their supporters.

"We see this as a betrayal of the very people the court is meant to defend and protect," said Arvind Narayan, one of the lawyers representing a consortium of gay rights groups. "In our understanding, the Supreme Court has always sided with those who have no rights."

There's little political consensus in India toward taking up the issue, especially ahead of national elections scheduled for next year. "It is not possible to legislate anything now," Home Minister Sushil Kumar Shinde said. "It needs political consensus."

Naz Foundation, an NGO that brought the original case, said it would seek a review of the decision.

The decision to leave the matter in the hands of Parliament is a rare departure for India's Supreme Court, which has been accused by lawmakers of judicial activism. The New York Times notes:

"India's judges have a long history of judicial activism that would be all but unimaginable in the United States. In recent years, judges required Delhi's auto-rickshaws to convert to natural gas to help cut down on pollution, shuttered much of the country's iron ore mining industry to cut down on corruption, and ruled that politicians facing criminal charges cannot seek re-election. Indeed, India's Supreme Court and Parliament have openly battled for decades, with Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings.

"But legalizing gay sex was one step too far for India's top judges, and in a rare instance of judicial modesty they deferred the matter to India's legislators."